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Legal Services Commissioner v Ward[2025] QCAT 293

Legal Services Commissioner v Ward[2025] QCAT 293

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Ward [2025] QCAT 293

PARTIES:

Legal Services Commissioner

(applicant)

v

Kylie Anne Ward

(respondent)

APPLICATION NO/S:

OCR168-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 August 2025

HEARING DATE:

29 July 2025

HEARD AT:

Brisbane

DECISION OF:

Justice Williams

Assisted by:

Mr Richard Barnes, Practitioner Panel Member

Ms Patrice McKay, Lay Panel Member

ORDERS:

  1. The Respondent’s conduct in respect of each of Charges 2 and 4 in the Amended Discipline Application is proved and is found to constitute unsatisfactory professional conduct.
  2. The Respondent’s conduct in respect of Charge 6 in the Amended Discipline Application is proved and is found to constitute unsatisfactory professional conduct.
  3. The Respondent is publicly reprimanded.
  4. The Respondent successfully complete the next available QLS Remedial Ethics Course at her own expense and provide the Applicant, within a month of having completed the course, evidence of her successful completion of the course.
  5. The Respondent pay the Applicant’s costs of and incidental to Charges 2, 4 and 6 of the Amended Discipline Application (excluding costs in respect of the discontinued Charges 1, 3 and 5), to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the Respondent was charged with a serious offence and failed to notify the Queensland Law Society (QLS) within the requisite time – where the Respondent was convicted of an offence and failed to notify the QLS within the requisite time – whether the Respondent engaged in unsatisfactory professional conduct or professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the Respondent attended the Magistrates Court as a criminal defendant – where the Respondent spontaneously appeared as legal representation for a defendant before the Magistrate – where the Respondent pleaded guilty and was sentenced by the same Magistrate shortly thereafter – where the Respondent submitted that the disciplinary charge should be dismissed – whether the charge was proved – whether the Respondent engaged in unsatisfactory professional conduct or professional misconduct

Australian Solicitors Conduct Rules 2012, r 3.1, r 5.1

Legal Profession Act 2007 (Qld), s 57, s 418, s 419, s 420, s 452, s 456, s 462

Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498, cited

Legal Services Commissioner v Bradshaw [2009] QCA 126, cited

Legal Services Commissioner v Challen [2019] QCAT 273, cited

Legal Services Commissioner v Cruise [2019] QCAT 182, cited

Legal Services Commissioner v Greenhalgh [2020] QCAT 349, cited

Legal Services Commissioner v Laylee [2016] QCAT 237, cited

New South Wales Bar Association v Cummins [2001] NSWCA 284, considered

APPEARANCES & REPRESENTATION:

Applicant:

R Taylor instructed by the Legal Services Commissioner

Respondent:

G Rice KC instructed by Gatenby Criminal Law

REASONS FOR DECISION

  1. [1]
    This is a discipline application by the Legal Services Commissioner (LSC) under s 452 of the Legal Profession Act 2007 (Qld) (LP Act) for disciplinary orders pursuant to s 456 of the LP Act. 
  2. [2]
    The discipline application originally raised six charges against the respondent, Kylie Anne Ward (Respondent).  At the hearing the LSC indicated that Charges 2, 4 and 6 were being maintained but Charges 1, 3 and 5 were being discontinued.  The Respondent agreed to this course.
  3. [3]
    Accordingly, the hearing proceeded on the basis of Exhibit 1, being the amended discipline application (Amended Discipline Application), and Exhibit 2, being the amended statement of agreed and disputed facts (Amended Statement of Facts).
  4. [4]
    The charges in the Amended Discipline Application that were considered at the hearing are:
    1. failing to notify the Queensland Law Society (QLS) of being charged with a serious offence in contravention of s 57(1)(b) of the LP Act (Charge 2);
    2. failing to notify the QLS of a conviction in contravention of s 57(1)(a) of the LP Act (Charge 4); and
    3. engaging in conduct likely to bring the profession into disrepute, and likely to be prejudicial to, or diminish public confidence in, the administration of justice (Charge 6).
  5. [5]
    The relevant facts are set out in the Amended Statement of Facts. The facts are agreed except for [37] in respect of the effect of the conduct the subject of Charge 6.
  6. [6]
    Further, the characterisation of the conduct in respect of Charges 2 and 4 as unsatisfactory conduct is agreed. 
  7. [7]
    However, Charge 6 is contentious between the parties as to whether the charge is proved and also whether, if proved, it is properly characterised as unsatisfactory professional conduct or professional misconduct. 
  8. [8]
    The appropriate sanction is also in dispute.
  9. [9]
    The LSC contends that:
    1. Charge 2 and Charge 4 are proved and properly characterised as unsatisfactory professional conduct.
    2. Charge 6 is proved and properly characterised as professional misconduct. 
    3. The Tribunal should make disciplinary orders including a public reprimand and that the Respondent undertake and successfully complete the QLS Legal Ethics Course at her own expense.
  10. [10]
    The Respondent contends that:
    1. Charge 2 and Charge 4 are proved and properly characterised as unsatisfactory professional conduct. 
    2. Charge 6 should be dismissed. 
    3. The Tribunal should not order a public reprimand, rather the findings in respect of Charge 2 and Charge 4 in the reasons of the Tribunal are sufficient. 
    4. It is not necessary for the Respondent to complete the QLS Remedial Ethics Course as it has no role to play in the ongoing protection of the public.
  11. [11]
    Accordingly, the issues to be determined by the Tribunal are as follows:
    1. Are Charge 2 and Charge 4 proved and properly characterised as unsatisfactory professional conduct?
    2. Is Charge 6 proved and, if so, is the Respondent’s conduct in respect of Charge 6 properly characterised as unsatisfactory professional conduct or professional misconduct?
    3. What are the appropriate orders pursuant to section 456 of the LP Act?
    4. What is the appropriate costs order?
  12. [12]
    Before dealing with each of these issues in turn, it is appropriate to consider the relevant statutory provisions.

Statutory provisions relevant to characterisation of unsatisfactory professional conduct or professional misconduct

  1. [13]
    In determining the discipline application:
    1. Pursuant to s 656C(1) of the LP Act, the Tribunal must be satisfied of the allegations against the Respondent on the balance of probabilities.
    2. Pursuant to s 656C(2) of the LP Act, satisfaction as to whether proof has been established depends upon the gravity of the allegations in question and the consequences for the Respondent.
  2. [14]
    Sections 418, 419 and 420 of the LP Act state as follows:

“418Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

419Meaning of professional misconduct

  1. Professional misconduct includes—
  1. unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
  1. conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
  1. For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

420Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

  1. The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—
  1. conduct consisting of a contravention of a relevant law, whether the conduct happened before or after the commencement of this section;

Note—

Under the Acts Interpretation Act 1954, section 7, and the Statutory Instruments Act 1992, section 7, a contravention in relation to this Act would include a contravention of a regulation or legal profession rules and a contravention in relation to a previous Act would include a contravention of a legal profession rule under the Legal Profession Act 2004.

  1. charging of excessive legal costs in connection with the practice of law;
  2. conduct for which there is a conviction for—
  1. a serious offence; or
  1. a tax offence; or
  1. an offence involving dishonesty;
  1. conduct of an Australian legal practitioner as or in becoming an insolvent under administration;
  2. conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;
  3. conduct of an Australian legal practitioner in failing to comply with an order of a disciplinary body made under this Act or an order of a corresponding disciplinary body made under a corresponding law, including a failure to pay wholly or partly a fine imposed under this Act or a corresponding law;
  4. conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
  1. Also, conduct that happened before the commencement of this subsection that, at the time it happened, consisted of a contravention of a relevant law or a corresponding law is capable of constituting unsatisfactory professional conduct or professional misconduct.
  2. This section does not limit section 418 or 419.”
  1. [15]
    In determining whether the relevant conduct amounts to unsatisfactory professional conduct or professional misconduct, the following authorities considering these general principles are of some assistance.
  2. [16]
    In Legal Services Commissioner v Laylee [2016] QCAT 237, the Tribunal stated the test required to establish unsatisfactory professional conduct as follows:

“The test required to determine whether conduct is unsatisfactory professional conduct is such that the relevant ‘falling short’ does not embrace all cases of error but must be sufficiently substantial.  There must be an appreciable departure from the standard for the conduct to be unsatisfactory professional conduct.  An isolated instance, not involving unethical conduct, and more in the nature of conduct which might give rise to an assertion of negligence, is less likely to amount to unsatisfactory professional conduct.  Serious, or repeated instances, are more likely to amount to unsatisfactory professional conduct or professional misconduct.”[1]

  1. [17]
    In Legal Services Commissioner v Bradshaw [2009] QCA 126, McMurdo P considered what must be demonstrated by the applicant to establish whether conduct falls within the statutory definition of unsatisfactory professional conduct and stated as follows:

“In establishing whether conduct is unsatisfactory professional conduct, the commissioner is not required to prove what a member of the public expects of a reasonably competent Australian legal practitioner.  This is not something easily capable of direct proof.  But in any case, s 418 refers to what ‘a member of the public is entitled to expect of a reasonably competent Australian legal practitioner’.  This is a standard to be determined by the tribunal after considering all the relevant circumstances pertaining in each case.”[2]

  1. [18]
    The test for professional misconduct was described by Thomas J in Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 as follows:

“The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”[3]

  1. [19]
    It is now necessary to consider the charges and the factual circumstances.

Are Charge 2 and Charge 4 proved and properly characterised as unsatisfactory professional conduct?

  1. [20]
    Charge 2 states:

“Between 21 January 2022 and 16 June 2022, the Respondent failed to notify the [QLS] of being charged with a serious offence in contravention of section 57(1)(b) of the [LP] Act]”

  1. [21]
    Charge 4 states:

“Between 19 April 2022 and 16 June 2022, the Respondent failed to notify the [QLS] of the 11 April 2022 conviction in contravention of section 57(1)(a) of the [LP] Act.”

  1. [22]
    The particulars relied upon in the Amended Discipline Application include the particulars at [1.1] and [1.3] and also [3.1] to [3.7] which were previously in respect of the discontinued Charges 1 and 3.  The charges were inter-related to some extent and there is some cross-refencing between the particulars.
  2. [23]
    The Amended Statement of Facts sets out the agreed facts in respect of Charges 2 and 4. The agreed facts relevantly include:
    1. At all material times, the Respondent was:
      1. (i)
        an Australian lawyer within the meaning of s 5(1) of the LP Act;
      1. (ii)
        a local legal practitioner as defined in s 6(2) of the LP Act;
      1. (iii)
        admitted in Queensland as a barrister on 28 April 2003;[4]
      1. (iv)
        the holder of an unrestricted principal practising certificate;
      1. (v)
        a principal at the law practice, KA Criminal Law; and
      1. (vi)
        subject to the Australian Solicitors Conduct Rules 2012 (ASCR).
    2. On 14 January 2022, the Respondent was charged with four weapons and drug offences, including one count of unlawfully possessing a dangerous drug. 
    3. Three of these offences met the definition of serious offences in Schedule 2 of the LP Act.
    4. The Respondent was required to notify the QLS of these charges under s 57(1)(b) of the LP Act and the notification was required within 7 days under s 57(2)(b) of the LP Act.
    5. The Respondent was required to notify the QLS of being charged with the serious offences by 21 January 2022.
    6. On 16 June 2022, the Respondent notified the QLS of having been charged with the serious offences.
    7. Between 21 January 2022 and 16 June 2022, the Respondent failed to notify the QLS of being charged with a serious offence in contravention of section 57(1)(b) of the LP Act.
    8. On 14 February 2022, the Respondent was intercepted by the Queensland Police Service (QPS) undertaking traffic enforcement and the Respondent was directed to provide a specimen of her saliva for analysis.
    9. The analysis of the Respondent’s specimen indicated the presence of a relevant drug, cannabis.
    10. On 14 February 2022, the Respondent was issued with a notice to appear in respect of a contravention of s 79(2AA)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) (First Drug Drive Offence).
    11. On 11 April 2022, the Respondent pleaded guilty in the Magistrates Court of Queensland and was convicted of the First Drug Drive Offence.  The Respondent was ordered to pay a fine of $350 and was disqualified from driving for one month.
    12. The Respondent was required to notify the QLS of her conviction for the First Drug Drive Offence under s 57(1)(a) of the LP Act and the notification was required within 7 days under s 57(2)(a) of the LP Act.
    13. The Respondent was required to notify the QLS of her conviction for the First Drug Drive Offence by 19 April 2022.
    14. On 16 June 2022, the Respondent notified the QLS of the conviction for the First Drug Drive Offence.
    15. Between 19 April 2022 and 16 June 2022, the Respondent failed to notify the QLS of her conviction for the First Drug Drive Offence in contravention of section 57(1)(a) of the LP Act.
  3. [24]
    On the basis of the admissions by the Respondent and the affidavit evidence, the Tribunal is satisfied that the relevant facts constituting Charges 2 and 4 have been established on the balance of probabilities, taking into account the gravity of the allegations in question and the consequences for the Respondent.
  4. [25]
    The conduct in Charges 2 and 4 is a contravention of the LP Act.  Section 57 of the LP Act relevantly states:

“(1) It is a statutory condition of a local practising certificate that the certificate holder must give notice to the relevant regulatory authority if the certificate holder is –

  1. convicted of an offence that would have to be disclosed under the admission rules for an application for admission; or
  2. charged with a serious offence.
  1. The notice must be in the approved form and given to the regulatory authority within 7 days after –
  1. if the certificate holder is convicted of an offence – the day the person is convicted; or
  1. if the certificate holder is charged with an offence – the day the person is charged.”
  1. [26]
    Pursuant to s 420 of the LP Act, a contravention of the LP Act is capable of constituting unsatisfactory professional conduct or professional misconduct.
  2. [27]
    A contravention of s 57(1)(a) and/or (b) of the LP Act is serious.  Such a contravention has the effect of being a breach of a statutory condition of the legal practitioner’s practicing certificate.
  3. [28]
    As with any other conditions on a practising certificate, a practitioner should be cognisant of the requirements to keep the QLS notified of any conviction and/or charge of a serious offence.
  4. [29]
    The QLS relies on practitioners to promptly notify it in accordance with the requirements of the LP Act in order for the QLS to undertake its task of regulating the profession.  This includes meeting the public policy purpose of ensuring probity and public trust in the profession.[5]
  5. [30]
    At the relevant time in 2022 the Respondent was subject to “an accumulating series of distractions and stressors” but accepts the need for her to be aware of her reporting obligations and to have made the necessary reports.[6]  Further, the Respondent accepts that her failure to report to the QLS amounts to unsatisfactory conduct.
  6. [31]
    Considering the authorities identified previously considering the test for unsatisfactory conduct and professional misconduct and taking into account all of the factual circumstances of this case,[7] Charges 2 and 4 do not involve a substantial or consistent failure, nor does the conduct violate or fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency such as to be characterised as professional misconduct. That is not to say, however, that a failure to notify a conviction or a charge of a serious offence in breach of s 57 of the LP Act may not amount to professional misconduct in certain circumstances.
  7. [32]
    The Respondent’s conduct in Charges 2 and 4 falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
  8. [33]
    Accordingly, the Tribunal finds that the Respondent’s conduct in respect of Charges 2 and 4 constitutes unsatisfactory professional conduct.

Is Charge 6 proved and, if so, is the Respondent’s conduct in respect of Charge 6 properly characterised as unsatisfactory professional conduct or professional misconduct?

  1. [34]
    Charge 6 states:

“On 10 October 2022 the Respondent engaged in conduct likely to bring the profession into disrepute, is likely to be prejudicial to, or diminish public confidence in, the administration of justice.”

  1. [35]
    The particulars relevant to Charge 6 include [1.1] and [5.2] to [5.7] together with the particulars [6.1] to [6.5].  These particulars are reflected in the Amended Statement of Facts and are agreed except for [6.5], which is disputed at [37] of the Amended Statement of Facts.
  2. [36]
    The agreed relevant facts include:
    1. The facts set out at [23(a)] above.
    2. On 24 August 2022, the Respondent was intercepted by the QPS undertaking traffic enforcement and was directed to provide a specimen of her saliva for analysis.
    3. The analysis of the Respondent’s specimen indicated the presence of a relevant drug, cannabis.
    4. On 24 August 2022, the Respondent was subsequently issued with a notice to appear in respect of a contravention of s 79(2AA)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) (Second Drug Drive Offence).
    5. On 10 October 2022, the Respondent provided legal representation for a defendant in the Magistrates Court at Southport before Magistrate Dooley in relation to public nuisance charges.
    6. Shortly after appearing for the defendant, the Respondent appeared before Magistrate Dooley as a defendant in her own criminal proceedings in relation to the Second Drug Drive Offence.
    7. The Respondent pleaded guilty to the Second Drug Drive Offence in the Magistrates Court at Southport.  The Respondent was ordered to pay a fine of $450 and was disqualified from driving for three months.
    8. The Respondent’s appearance for the defendant and herself was the subject of a media article dated 11 October 2022 in the Gold Coast Bulletin.
    9. By letter dated 22 September 2023, the Respondent provided an apology to the Chief Magistrate.
  3. [37]
    The LSC contends, but the Respondent does not agree, that the conduct was likely to a material degree to bring the profession into disrepute and was likely to be prejudicial to, or diminish public confidence in, the administration of justice.
  4. [38]
    The Respondent filed an affidavit and was cross-examined at the hearing in respect of matters relevant to Charge 6.  The Respondent’s evidence of the context in which the conduct arose included:
    1. The Respondent was in the courtroom waiting for her sentence.
    2. She observed a self-represented defendant who appeared to be having difficulties with his matter before the Magistrate and was at risk of actual imprisonment.
    3. The Respondent approached the bar table and offered to assist the defendant as a friend of the Court.  The offer to assist was spontaneous.
    4. The defendant’s matter was stood down so that the Respondent could provide some legal advice, which she provided pro bono.
    5. Subsequently to the defendant’s matter being dealt with, the Respondent’s sentence proceeded in front of the same Magistrate.
  5. [39]
    The conduct complained of is that the Respondent appeared in two capacities on 10 October 2022:  the Respondent advised, and appeared for, the defendant, and shortly thereafter the Respondent was sentenced as a defendant for the Second Drug Drive Offence by the same Magistrate.
  6. [40]
    The Respondent points to the fact that the Magistrate made no comment about this occurring.  However, that cannot be a complete answer to the charge.
  7. [41]
    The LSC points to the statement by the New South Wales Court of Appeal in New South Wales Bar Association v Cummins as providing some assistance in the consideration of these circumstances.[8]  Chief Justice Spigelman, with whom Mason P and Handley JA agreed, stated:

“There are four interrelated interests involved.  Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers.  Fellow practitioners must be able to depend implicitly on the word and the behaviours of their colleagues. The judiciary must have confidence in those who appear before the courts.  The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice.  Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.”[9]

  1. [42]
    It is contended by the LSC that each of the four interrelated interests were impacted by the Respondent’s conduct.  That is, the interests of the defendant, the prosecutor, the presiding Magistrate, and the public.
  2. [43]
    It is submitted that the sequence of events is likely to materially diminish or prejudice the administration of justice and impact the public’s confidence in the legal profession.
  3. [44]
    The LSC does refer to and rely on a letter of apology sent by the Respondent to the Chief Magistrate.  The letter was sent 12 months after the relevant conduct.  The contents of the Respondent’s letter may be relevant to sanction but cannot go to the establishment of the charge itself.  A finding of unsatisfactory professional conduct or professional misconduct must be made considering the seriousness of the conduct, judged without reference to subsequent events, including the Respondent’s rehabilitation or reaffirmation of character.[10]  The letter of apology does not constitute a formal admission but may be reflective of some insight.
  4. [45]
    The submissions made on behalf of the Respondent include that the Respondent’s conduct in assisting and appearing on behalf of the defendant would ordinarily be seen as commendable.  That is, the conduct is in accordance with the aspirational values of the legal profession of service to the public and the administration of justice.
  5. [46]
    The Respondent contends that this commendable conduct becomes professional misconduct on the LSC’s case by reason of the Respondent being due to appear in the same Court as a defendant on a traffic charge. 
  6. [47]
    The Respondent points to various factors in support of the contention that Charge 6 should be dismissed:
    1. The Respondent was entitled to appear for the defendant, even if she was later to appear as a defendant herself.
    2. The case of New South Wales Bar Association v Cummins involved long standing tax avoidance in contrast to the current case involving a traffic offence warranting a $450 fine.
    3. The Respondent’s integrity is not in issue on the traffic charge.
    4. The impact on the defendant and the prosecutor is speculative.  The Respondent’s assistance of the defendant was likely to have assisted the interests of justice.
    5. The Magistrate was experienced, and the Respondent was being dealt with for a routine traffic matter.  The Magistrate’s capacity to deal with the Respondent’s matter was undiminished.
    6. The transcript of the Respondent’s sentence shows that the matter was dealt with in an ordinary manner.
    7. Right thinking members of the public would take the events as a demonstration that the courts administer justice even handedly for all, without fear or favour, including where a defendant happens to be a legal practitioner.
    8. Further, right thinking members of the public would take away an enhanced view of the profession by observing that the Respondent, with no obligation to act while she waited for her own matter, spontaneously took it on herself to assist the unrepresented defendant and the Court in the interests of justice where the defendant’s liberty was at stake and did so for no fee.
  7. [48]
    It is in these circumstances that the Respondent submits that the conduct does not amount to unsatisfactory professional conduct, nor professional misconduct.
  8. [49]
    Charge 6 concerns engaging in conduct likely to bring the profession into disrepute and likely to be prejudicial to or diminish public confidence in the administration of justice on the particular facts.
  9. [50]
    The underlying facts are established.  The issue is whether [6.5] of the Amended Discipline Application is established: that is, whether the Respondent’s conduct is likely to a material degree to bring the profession into disrepute or is likely to be prejudicial to, or diminish public confidence in, the administration of justice,
  10. [51]
    The following matters are relevant to evaluating the Respondent’s conduct:
    1. A solicitor is an officer of the Court and owes an overriding duty to the Court.  To the extent that there is any conflict between duties, the duty to the Court must prevail. 
    2. In respect of the paramount duty to the Court it has been observed that:

“This paramountcy is justified by reason of ‘the court’ being the representative of the public interest in the administration of justice.  Lawyers have a reciprocal responsibility:

‘The lawyer’s highest loyalty is at the same time the most intangible.  It is a loyalty that runs, not to persons, but to procedures and institutions. The lawyer’s role imposes on him a trusteeship for the integrity of this fundamental processes of government and self-government upon which the successful functioning of our society depends.’”[11]

  1. Whilst the Respondent acting pro bono for the defendant before the Magistrate was commendable, a solicitor in the position of the Respondent should have considered whether so acting was consistent with the paramount duty to the Court and the administration of justice. 
  2. Just as a solicitor appearing as a witness may tend to “confuse the lawyer’s role”,[12] a similar concern arises where a solicitor appears before the Court as a defendant to be sentenced in a criminal proceeding in the same sitting as appearing as advocate for another party being dealt with by the same Magistrate.
  3. The Respondent’s conduct had the potential to disrupt the integrity of the court process and consequently the administration of justice.[13]
  4. The age-old adage that “justice must not only be done but must be seen to be done” illustrates the importance of the impression of the administration of justice.
  5. A solicitor appearing before the Court in multiple roles has the tendency to “confuse the lawyer’s role”.  This may be in respect of the Court, the practitioner for the other party (or prosecutor as arises on the current facts), other defendants (or litigants), and the public.
  6. A solicitor acting for a party in a criminal proceeding and then being sentenced in respect of a criminal charge, even if minor, by the same Magistrate in short proximity to the first matter being dealt with may tend to diminish the public confidence in the administration of justice.
  7. The conduct may bring the legal profession into disrepute in that it may lead members of the public to question the integrity and standards of the legal profession and also  the integrity of the criminal justice system.
  8. Where public confidence in the administration of justice is diminished, the effectiveness of the legal profession in the service of clients, the Courts, and the public is prejudiced.
  9. Accordingly, the Respondent’s conduct is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice and/or bring the legal profession into disrepute.
  10. The Tribunal must have primary regard to the need to protect the public and ensure maintenance of proper professional standards.
  1. [52]
    On the evidence, the Tribunal is satisfied that the relevant facts constituting Charge 6 have been established on the balance of probabilities, taking into account the gravity of the allegations in question and the consequences for the Respondent.
  2. [53]
    In considering the conduct, it is relevant that, pursuant to s 420(1)(a) of the LP Act, conduct consisting of a contravention of a relevant law,[14] which includes the ASCR,[15] is conduct capable of constituting unsatisfactory professional conduct or professional misconduct. 
  3. [54]
    Rule 5 of the ASCR states as follows:

“Dishonest and disreputable conduct

5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:

5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or

5.1.2 bring the profession into disrepute.”

  1. [55]
    Rule 3 of the ASCR is also relevant and states:

“Paramount duty to the court and the administration of justice

3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.”

  1. [56]
    The Respondent’s conduct is a breach of Rule 5.1.2 of the ASCR and the conduct is capable of constituting unsatisfactory professional conduct or professional misconduct. 
  2. [57]
    The conduct in respect of Charge 6 needs to be considered in the context of the authorities previously identified in respect of what constitutes unsatisfactory conduct and professional misconduct and taking into account all of the factual circumstances of this case.[16]
  3. [58]
    Engaging in conduct likely to bring the profession into disrepute and likely to be prejudicial to or diminish public confidence in the administration of justice may amount to professional misconduct in certain circumstances.  However, in all of the current circumstances, the conduct is at the lower end of the range of contravening conduct.
  4. [59]
    Considered in all of the circumstances, the Respondent’s conduct in respect of Charge 6 does not involve a substantial or consistent failure, nor does the conduct violate or fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency such as to be characterised as professional misconduct.
  5. [60]
    However, the Respondent’s conduct in respect of Charge 6:
    1. does fall short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner; and
    2. does fall short of the standard of professional conduct observed or approved by members of the profession of good repute and competency.
  6. [61]
    Accordingly, the Tribunal finds that the Respondent’s conduct in respect of Charge 6 constitutes unsatisfactory professional conduct.

What are the appropriate orders pursuant to section 456 of the LP Act?

  1. [62]
    Having made the findings as to unsatisfactory professional conduct, the discretion in s 456 of the LP Act arises.
  2. [63]
    Section 456 of the LP Act states:

“456 Decisions of tribunal about an Australian legal practitioner

  1. If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.
  2. The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—
  1. an order recommending that the name of the Australian legal practitioner be removed from the local roll;
  2. an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
  3. an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
  4. an order that—
  1. imposes stated conditions on the practitioner’s practising certificate granted or to be issued under this Act; and
  1. imposes the conditions for a stated period; and
  1. specifies the time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed;
  1. an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;
  2. an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—
  1. employ or continue to employ the practitioner in a law practice in this jurisdiction; or
  1. employ or continue to employ the practitioner in this jurisdiction unless the conditions of employment are subject to conditions stated in the order.
  1. The tribunal may, under this subsection, make 1 or more of the following—
  1. an order recommending that the name of the Australian legal practitioner be removed under a corresponding law from an interstate roll;
  2. an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled under a corresponding law;
  3. an order recommending that an interstate practising certificate not be, under a corresponding law, granted to the practitioner until the end of a stated period;
  4. an order recommending—
  1. that stated conditions be imposed on the practitioner’s interstate practising certificate; and
  1. that the conditions be imposed for a stated period; and
  1. a stated time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed.
  1. The tribunal may, under this subsection, make 1 or more of the following—
  1. an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000;
  2. a compensation order;
  3. an order that the practitioner undertake and complete a stated course of further legal education;
  4. an order that, for a stated period, the practitioner engage in legal practice under supervision as stated in the order;
  5. an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice;
  6. an order that the practitioner stop accepting instructions as a public notary in relation to notarial services;
  7. an order that engaging in legal practice by the practitioner is to be managed for a stated period in a stated way or subject to stated conditions;
  8. an order that engaging in legal practice by the practitioner is to be subject to periodic inspection by a person nominated by the relevant regulatory authority for a stated period;
  9. an order that the practitioner seek advice from a stated person in relation to the practitioner’s management of engaging in legal practice;
  10. an order that the practitioner must not apply for a local practising certificate for a stated period.
  1. To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4).
  2. Also, the tribunal may make ancillary orders, including an order for payment by the Australian legal practitioner of expenses associated with orders under subsection (4), as assessed in or under the order or as agreed.
  3. The tribunal may find a person has engaged in unsatisfactory professional conduct even though the discipline application alleged professional misconduct.”
  1. [64]
    The discretion to make any order the Tribunal thinks fit is a wide discretion and is exercised primarily in the protection of the public.[17] Principles of personal and general deterrence are also relevant.[18]
  2. [65]
    An order publicly reprimanding the practitioner may be imposed pursuant to s 456(2)(e) of the LP Act.
  3. [66]
    The impact of a public reprimand has been recognised previously by the Tribunal. In Legal Services Commissioner v Cruise, the Tribunal[19] referred to the observations made in Council of the New South Wales Bar Association v Lott as follows:

“A reprimand is a serious matter.  It marks the disgrace of a member of an honourable profession inherent in the misconduct.”[20]

  1. [67]
    Further, the Tribunal in Legal Services Commissioner v Challen recognised the seriousness of a public reprimand as follows:

“[39] First, there will be an order that the Respondent be publicly reprimanded. The Respondent conceded that this was an appropriate order in this case. The impact of such an order being made cannot be understated, particularly when it is made against a practitioner of significant seniority and an otherwise unblemished professional record. As this Tribunal has previously said:

The making of a public reprimand is a serious step by the Tribunal and not one which should be taken or regarded lightly. The public reprimand is and will continue to be a permanent public blemish on the Respondent’s professional record. It is and will continue to stand as a permanent reminder to the Respondent, to the profession and to the public at large that there are adverse personal consequences when one engages in professional misconduct of this kind.”[21]

  1. [68]
    The Respondent contends that a reprimand is not the “inevitable outcome” and that it is open for the Tribunal not to impose a reprimand.  Reliance is placed on the decision of Legal Services Commissioner v Greenhalgh as an example where, in the particular circumstances considered by the Tribunal, findings of unsatisfactory professional conduct and professional misconduct were made but no reprimand was imposed.[22]
  2. [69]
    The failures to notify the QLS in contravention of the statutory requirement[23] and engaging in conduct likely to bring the profession into disrepute and/or likely to be prejudicial to or diminish public confidence in the administration of justice go to the fundamental obligations of a legal practitioner undertaking legal practice.  In these circumstances, a reprimand would operate as a reminder to the Respondent, to the profession, and to the public at large that there are consequences for conduct of this character and the obligations on a legal practitioner need to be kept front of mind.
  3. [70]
    In all of the circumstances, the Tribunal is satisfied that it is appropriate to impose a public reprimand.  The Respondent’s conduct, while at the lower end of the range of offending conduct in respect of each of the charges, is of such a character that a reprimand is appropriate. 
  4. [71]
    The LSC also seeks the imposition of an order requiring the Respondent to undertake an ethics course pursuant to s 456(4)(c) of the LP Act and this is opposed by the Respondent.
  5. [72]
    In the circumstances of this case it is submitted that such an order would be apt to protect the public.
  6. [73]
    While the Respondent is an experienced legal practitioner with no history of disciplinary proceedings and shows at least some insight, it is submitted that there remains some utility in the Respondent undertaking the QLS Legal Ethics Course.
  7. [74]
    The QLS Legal Ethics Course can be structured to include focused reflections on specific topics of relevance.  Given the Respondent’s conduct the subject of the charges, a focus on the notification and disclosure obligations in the LP Act and conduct likely to bring the profession into disrepute and/or likely to be prejudicial to or diminish public confidence in the administration of justice would be directed at both the protection of the public and maintaining professional standards.
  8. [75]
    The Tribunal is satisfied that it is appropriate to order the Respondent undertake the QLS Legal Ethics Course with a focus as outlined above.
  9. [76]
    The Respondent will be required to bear the costs of undertaking the QLS Legal Ethics Course, which is currently $1,500.  The Respondent will also have to take a day off work to attend the course. These mattes have been considered and taken into account in arriving at the overall sanction to be imposed.

What is the appropriate costs order?

  1. [77]
    Section 462(1) of the LP Act states:

“A disciplinary body must make an order requiring a person whom it has found to have engaged in prescribed conduct to pay costs, including costs of the commissioner and the complainant, unless the disciplinary body is satisfied exceptional circumstances exist.”

  1. [78]
    The Respondent submits that exceptional circumstances are identified that would justify a departure from an order in accordance with s 462(1) of the LP Act in respect of Charges 1, 3 and 5 of the discipline application.
  2. [79]
    The basis is that Charges 1, 3 and 5 have been discontinued and accordingly the Respondent should not be required to pay the costs in respect of those discontinued charges.  This is not contentious and the LSC accepts that this is appropriate in the circumstances.
  3. [80]
    Otherwise, there are no exceptional circumstances that would justify a departure from an order in accordance with s 462(1) of the LP Act in respect of Charges 2, 4 and 6 of the Amended Discipline Application.
  4. [81]
    Accordingly, the Tribunal is satisfied that it is appropriate to order that the Respondent pay the LSC’s costs of and incidental to Charges 2, 4 and 6 of the Amended Discipline Application, to be assessed.
  5. [82]
    For the purpose of s 462(5)(b) of the LP Act, it is appropriate that costs be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

Orders

  1. [83]
    For the reasons stated above, the Tribunal orders that:
    1. The Respondent’s conduct in respect of each of Charges 2 and 4 in the Amended Discipline Application is proved and is found to constitute unsatisfactory professional conduct.
    2. The Respondent’s conduct in respect of Charge 6 in the Amended Discipline Application is proved and is found to constitute unsatisfactory professional conduct.
    3. The Respondent is publicly reprimanded.
    4. The Respondent successfully complete the next available QLS Remedial Ethics Course at her own expense and provide the Applicant, within a month of having completed the course, evidence of her successful completion of the course.
    5. The Respondent pay the Applicant’s costs of and incidental to Charges 2, 4 and 6 of the Amended Discipline Application (excluding costs in respect of the discontinued Charges 1, 3 and 5), to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

Footnotes

[1]  Thomas J at [43].

[2]  At [54].

[3]  At 507.

[4]  Under the name of Kylie Anne Gillespie.

[5]Magill v Queensland Law Society Inc [2019] QCAT 392 at [29].

[6]  At [21] of the Respondent’s submissions dated 26 February 2025.

[7]  Including the matters of context in the affidavits.

[8]  (2001) 52 NSWLR 279.

[9]  At 284 [20].

[10]Legal Services Commissioner v Munt [2023] QCAT 479 at [105]; Legal Services Commissioner v Kirin [2024] QCAT 489 at [15].

[11]  D A Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63, 103, quoting Lon Fuller and John Randall, ‘Professional Responsibility: Report of the Joint Conference’ (1958) 44(12) American Bar Association Journal 1159, 1162

[12]  G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 7th ed, 2021) 578.

[13]  Even if there is no evidence that it did in fact disrupt the integrity of the court process.

[14]  The term “relevant law” is defined in Schedule 2 of the LP Act to mean “this Act”. See also s 1 of the LP Act.

[15]  Being the version of the ASCR in force at the time of the Respondent’s conduct.  Section 420(1)(a) of the LP Act includes a note that a contravention in relation to the LP Act includes a contravention of a regulation or legal profession rules. 

[16]  Including the matters of context in the affidavits.

[17]Legal Services Commissioner v Madden [2009] 1 Qd R 149, 186 [122].

[18]Attorney-General v Bax [1999] 2 Qd R 9, 22.

[19]  Constituted by Daubney J (President), Mr Michael Meadows and Dr Margaret Steinberg AM.

[20]  [2019] QCAT 182 at [116], citing Council of the New South Wales Bar Association v Lott [2018] NSWCATOD 99 at [35].

[21]  [2019] QCAT 273, citing Legal Services Commissioner v Brown [2018] QCAT 263 at [42].

[22]  [2020] QCAT 349.

[23]  Which makes the obligation a condition on the legal practitioner’s practising certificate.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Ward

  • Shortened Case Name:

    Legal Services Commissioner v Ward

  • MNC:

    [2025] QCAT 293

  • Court:

    QCAT

  • Judge(s):

    Justice Williams

  • Date:

    19 Aug 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adamson v Queensland Law Society Incorporated[1990] 1 Qd R 498; [1989] QSCFC 145
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 498
Cite 2 - [1990] 1 Qd R 498
Attorney-General v Bax [1999] 2 Qd R 9
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 9
Council of the New South Wales Bar Association v Lott [2018] NSWCATOD 99
1 citation
Jump To
Cite 1 - [2018] NSWCATOD 99
D Ipp, Lawyer's Duties to the Court (1998) 114 LQR 63
1 citation
Jump To
Cite 1 - (1998) 114 LQR 63
Legal Services Commissioner v Bradshaw [2009] QCA 126
2 citations
Jump To
Cite 1 - [2009] QCA 126
Cite 2 - [2009] QCA 126
Legal Services Commissioner v Brown [2018] QCAT 263
1 citation
Jump To
Cite 1 - [2018] QCAT 263
Legal Services Commissioner v Cruise [2019] QCAT 182
2 citations
Jump To
Cite 1 - [2019] QCAT 182
Cite 2 - [2019] QCAT 182
Legal Services Commissioner v Greenhalgh [2020] QCAT 349
2 citations
Jump To
Cite 1 - [2020] QCAT 349
Cite 2 - [2020] QCAT 349
Legal Services Commissioner v Kirin [2024] QCAT 489
1 citation
Jump To
Cite 1 - [2024] QCAT 489
Legal Services Commissioner v Laylee [2016] QCAT 237
2 citations
Jump To
Cite 1 - [2016] QCAT 237
Cite 2 - [2016] QCAT 237
Legal Services Commissioner v Madden (No 2)[2009] 1 Qd R 149; [2008] QCA 301
1 citation
Jump To
Cite 1 - [2009] 1 Qd R 149
Legal Services Commissioner v Munt [2023] QCAT 479
1 citation
Jump To
Cite 1 - [2023] QCAT 479
Legal Services Commissioner v Peter Leslie Challen [2019] QCAT 273
2 citations
Jump To
Cite 1 - [2019] QCAT 273
Cite 2 - [2019] QCAT 273
Magill v Queensland Law Society Inc [2019] QCAT 392
1 citation
Jump To
Cite 1 - [2019] QCAT 392
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279
1 citation
Jump To
Cite 1 - (2001) 52 NSWLR 279
New South Wales Bar Association v Cummins [2001] NSWCA 284
1 citation
Jump To
Cite 1 - [2001] NSWCA 284

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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